Daily Development for Monday, April 28, 2003
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
dirt@umkc.edu

LANDLORD/TENANT; GOOD FAITH AND FAIR DEALING;
NOISE NUISANCE: Tenant that deliberately plays loud music that
"unreasonably disturbs the peace" of other tenants is liable for breach of
implied covenant of good faith and fair dealing when such activity
violates public noise ordinance and compliance with local law is required
by the lease.

Howard Opera House Assoc. v. Urban Outfitters, Inc., 322 F.3d 215
(2nd Cir. 2003)

Tenant Urban Outfitters apparently has a business model that involves
playing pop music at a certain volume in its store premises.  Landlord
rented to an Urban Outfitters store operator in a building also occupied
by office tenants, including a law office.  Friction soon developed.

The other tenants prevailed upon the landlord to deal with the noisy
neighbor.  The lease did not expressly restrict noise, but stated that the
tenant had an obligation to comply with "all applicable laws."  A city
code section stated that it was unlawful to make or cause to be made a
any loud or unreasonable noise.  "Noise shall be deemed to be
unreasonable when it disturbs, injures or endangers the peace or health of
another . . .Any such noise shall be . . . a public nuisance."

Landlord brought suit for breach of the implied covenant of good faith
and fair dealing, breach of the lease itself, and nuisance.  The other
tenants joined in the suit for nuisance.  Although the plaintiffs withdrew
complaints for anything but injunction, the trial court elected to "try the
case as an action for damages before an advisory jury " and found for
plaintiffs.

Presumably the landlord was seeking to establish liability under the
breach of the duty of good faith and fair dealing so that it could obtain
damages based upon a tort theory - perhaps punitive damages.  By the
time the case was finally resolved, there was no specific damages claim,
but the court still made a finding as to damages liability.

The other tenants were suing for nuisance, and one would think that the
landlord also could recover in nuisance for injury to the landlord's
relationship with its other tenants, so it is not clear what the good faith
and fair dealing claim really adds other than a more dramatic voicing of
the same complaint.

CONSTITUTIONAL LAW; FREE SPEECH; NOISE
INJUNCTION: Inunction that states that occupants of land may not
"unreasonably disturb" of neighboring tenants through excess noise is
unconstitutional as an overly vague restriction on free speech.  Howard
Opera House Assoc. v. Urban Outfitters, Inc., 322 F.3d 215 (2nd Cir.
2003)

 A city code section stated that it was unlawful to make or cause to be
made a any loud or unreasonable noise.  "Noise shall be deemed to be
unreasonable when it disturbs, injures or endangers the peace or health of
another . . .Any such noise shall be . . . a public nuisance."

Landlord and other tenants brought suit for nuisance.  The question of
whether there was a breach of the lease as well arose on landlord's
claims based upon breach of contract and breach of the implied warranty
of good faith and fair dealing.

The court entered an order requiring Urban Outfitters to refrain from
operating the sound system in the store in a manner "that substantially
and unreasonably interferes with the other tenants' use of their space."
The court also, inexplicably ordered defendants affirmatively to operate
the sound system in a way that did not disturb the other tenants.  (Does
the defendant violate the second order if it doesn't operate the sound
system at all?  If not, why the two phrasings?)

The court commented that it is one thing for a noise ordinance to be
broadly worded so as to comprehend a variety of circumstances.  It is
another for a specific judicial order to have similar vagueness as this may
tend  to inhibit free speech.

The court commented that it appeared that there was ample evidence to
tailor the court's order more specifically to give the defendant direction
as to just how much noise was too much.  It stated that, in light of the
free speech ramifications involved, it was not too much to expect the trial
court to provide this level of detail.  It affirmed the finding of a public
nuisance but reversed the injunction and remanded.

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